Gerald Taruvinga v Seachi Logistics (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 23 JUNE 2025
JUDGMENT NO LC/H/237/25 ,CASE
NO. LC/H/390/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 23 JUNE 2025

JUDGMENT NO LC/H/237/25 ,CASE NO. LC/H/390/25

AND 3 JULY 2025

IN THE MATTER BETWEEN:

GERALD TARUVINGA	APPLICANT

AND

SEACHI LOGISTICS (PVT) LTD	RESPONDENT

Before Honorable Mr. Justice L.M. Murasi

For the Applicant	Mr. T.C Nemadziva

For the Respondent	Mr. E Darangwa

MURASI J,

This is an application for review in terms of section 92EE of the Labour Act [Chapter 28:01] as read with Rule 20 of the Labour Court Rules, 2017.

The applicant was a former employee of the respondent. The respondent is a limited liability company duly incorporated and registered in terms of the laws of Zimbabwe. In the tribunal a quo, Applicant was charged with alcohol and drug abuse in that he had reported for work intoxicated on 7 March 2025 such that his behavior was noisy and disruptive which threatened the safety of other employees. He was found guilty of this charge and Not Guilty on others where he produced evidence of having tried and convicted. Applicant is disgruntled with this outcome and has approached this Court for relief.

GROUNDS F0R REVIEW

Absence of jurisdiction on the part of the Arbitrator or adjudicating authority concerned.

Gross irregularities in the disciplinary proceedings that led to applicant’s dismissal.

Interest in the case, bias, malice or corruption on the part of the arbitrator or adjudicating authority concerned.

PROCEEDINGS BEFORE THIS COURT

At the hearing, Mr. Darangwa sought postponement of the hearing on behalf of the respondent’s representative. It was submitted that the representative had travelled to South Africa as his wife was not feeling well. It was also common cause that earlier correspondence to this effect had been replied to and Respondent informed that it had to find another person to deal with the matter. In Stonewell Searches (Pvt) Ltd v Stone Holdings (Pvt) Ltd & Ors SC 22/21 it was held as follows:

“Over and above that, the mere fact that a party’s counsel, of choice is unavailable is not good enough a ground upon which to grant a postponement. This position was laid out in D’Anos v Heylon (Pty) Ltd 1950 (1) SA 324 C at 335-336 where the court held that:

‘the non-availability of counsel cannot be allowed to thwart the bringing before the court of the matter in issue. In all but the rarest of cases suitable counsel will be available. This is not the convenience of counsel; it is the reasonable convenience of the parties- and by that I mean both parties- and the requirement of going through the court’s work which must be the dominant considerations. The availability of counsel is a subsidiary consideration. A party’s predilection for a particular counsel to take his case can, in my view, seldom, if indeed ever, be regarded as a decisive objection to a date of set-down which is in all respects reasonable and acceptable to both parties.’”

Accordingly, the application for postponement of the matter was dismissed.

Submissions by the Parties Applicant’s Submissions

Mr. Nemadziva, raised three points on the merits. Firstly, he stated that the Designated Officer had no jurisdiction to preside over the matter since there are more than four managerial and 6 non- managerial employees. He stated that in terms of Article 8 of the Code of Conduct, conducting disciplinary hearings is the prerogative of the disciplinary committee composed of management representatives and workers representatives. He further stated that a letter from the NEC Transport Industry, authored by the General Secretary, could not benefit the respondent as he does not have the authority to offer such exemptions and no reasons were submitted as to why the disciplinary committee could not be composed.

Secondly, he alleged that there were gross irregularities in the disciplinary proceedings because no proper investigations were carried out. He asserted that Mr. Darangwa, who conducted the investigation, was not his immediate supervisor as mandated by the code of conduct. Lastly, he submitted that there was bias on the side of the Designated Officer as he was hired by the respondent solely to discharge the applicant of his duties.

The court asked if there was evidence to support his allegations. In response, Mr Nemadziva indicated that there was no evidence, and the court indicated that it cannot rely on unsupported claims.

Respondent’s Submissions

Mr. Darangwa stated that he would abide by the documents filed of record.

The Opposing Affidavit raises a point in limine to the effect that Applicant had not exhausted the internal remedies provided in the conduct of conduct. It was stated that the code of conduct provided that an aggrieved party had the right to approach the Chief Executive on appeal within 5 working days. On the merits, it was submitted that the company structure had less than 4 managerial employees and Respondent had approached the NEC Transport Industry as a result. The statement further avers that Respondent was granted an exemption and was therefore supposed

to appoint a Disciplinary Officer instead. It was thus argued that there was no procedural irregularity to talk about.

In respect of the second ground for review, It was asserted that investigations were carried out by Applicant’s immediate superior who was Mr. Darangwa who thereafter sought guidance from the Human Resources Manager. It was also submitted that the rules of natural justice were complied with the circumstances. As far as the last ground for review was concerned, it was averred that the Designated Officer was not an interested party and therefore had no reason to be biased against the Applicant.

ANALYSIS

An application review involves a situation when a party is aggrieved by the method or process which led to the decision. A review is therefore not concerned with correcting a decision on the merits but is aimed at the maintenance of legality. In Liberty Life Association of Africa v Kachelhoffer 2001 (3) SA 1094, it was stated as follows:

“Review and appeal are dissimilar proceedings. The former concerns the regularity of the proceedings whereas the latter concerns the correctness or otherwise of the decision that is being assailed on appeal. Because of that fundamental difference between review and appeal, they are inconsistent remedies in the sense that if both are available, an appeal can be considered only after the review proceedings have been finalized as a decision in respect of the appeal would preclude the granting of relief by way of review.. Similarly, a successful review obviates the need to consider the merits of an appeal.”

Applicant has approached this Court on review. This therefore entails that this Court considers the method and process of adjudication in the tribunal a quo.

ISSUES FOR DETERMINATION

Whether or not the Designated Officer had jurisdiction to preside over the matter

Whether or not there were gross irregularities in the disciplinary proceedings.

Whether or not the Designated Officer was biased in any way

Whether or not the Designated Officer had jurisdiction to preside over the matter

The applicant submitted that the Designated Officer who presided over the disciplinary hearing had no jurisdiction since the company has more than four managerial and 6 non-managerial employees, hence it could have constituted a disciplinary committee. The respondent, on the other hand, states that the company structure has less than four managerial employees, hence its inability to constitute a disciplinary committee. The respondent claims that, after consultations and labour inspections, the NEC was satisfied that the organizational structure of the company is not properly constituted to meet the requirements of establishing a disciplinary committee. Page 20 of the record shows a letter dated 15 January 2025 received from NEC Transport Industry approving an exemption to appoint a Disciplinary Officer to preside over the disciplinary hearing; thus, the Designated Officer was properly appointed and had the requisite jurisdiction to determine the matter. The applicant could not provide evidence before his Court to prove that the company has sufficient managerial and non-managerial employees to constitute a disciplinary committee and that the Designated Officer had no jurisdiction to preside over the matter. Applicant merely made statements which were not supported by any evidence. In Pillay v Krishna 1946 AD 946 it was held thus:

“But there is a third rule which Voet states..’He who asserts, proves and not he who denies since denial of a fact cannot naturally be proved provided it is a fact that is denied and the denial is absolute.’ The onus is on the person who alleges something and not on whose opponent who merely denies it.”

Applicant’s representative merely made assertions which were not backed by evidence. That ground is therefore devoid of merit.

Whether or not there were gross irregularities in the disciplinary proceedings

The applicant submitted that most of the procedural dictates of the code of conduct were disregarded. He alleged that the investigations were conducted by the Human Resources Officer and Logistics Manager, who were not his immediate supervisors. He claimed that no proper investigations were carried out prior to the commencement of the disciplinary proceedings. The respondent contended that the applicant’s claim is based on untrue findings. It asserted that the investigations were conducted by the applicant’s immediate supervisor, Mr. Darangwa, who then sought guidance from the HR Manager, Mr. Muungani. The respondent further provided that the

applicant was given an opportunity to cross-examine two witnesses who had led evidence, and no prejudice was experienced by the applicant in any way.

In terms of Clause 1 of the Code of Conduct, when an offence is alleged to have been committed by an employee, the immediate superior shall investigate the act of the alleged misconduct, gather facts of the alleged misconduct and have them confirmed by the parties, and also conduct investigations in accordance with the rules of natural justice. From the given facts, it shows that the applicant’s immediate supervisor conducted the investigations, hence meeting the provisions of the code of conduct.

It is trite that it is not enough to point out procedural irregularities but that one must go on to allege and show prejudice. The applicant, in the whole application, has not been able to demonstrate that there was any prejudice to him.

Whether or not the Designated Officer was biased in any way

The applicant submitted that there was bias on the side of the Designated Officer as he was hired by the respondent solely to discharge the applicant of his duties. On the contrary, the respondent submitted that the Designated Officer had no interest in the matter and he ensured impartiality throughout the disciplinary proceedings. The test for bias contains a two-fold objective element, the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case. (See Leopard Rock Hotel Co. (Pvt) Ltd & Anor v Wallem Construction (Pvt) Ltd 1994 (1) ZLR 225 (S).) In the present matter, it cannot logically be concluded, without the adduction of evidence, that because the Respondent appointed the Disciplinary Officer, that person must be biased against the Applicant. In proceedings of this nature, the party making a claim or allegation bears the burden of proving their case on a balance of probabilities. In Matseketsa v The Commissioner General of Police & Anor HH 79-18 p 8, the court stated that:

“The onus lies on he who alleges. He must prove his case on a balance of probabilities. It is not for the defendant or the respondent to disprove what the plaintiff or the applicant alleges against him. That is the immutable rule of criminal or civil procedure. The applicant failed to prove his case on balance of probabilities. His application stands on nothing. It is devoid of merit.”

In casu, I note there was no evidence presented before the Court to support the assertion that the respondent had hired the Designated Officer solely to discharge the applicant. Without legible evidence by the applicant, it was not proved that the Designated Officer was biased in any way. Therefore, this renders the applicant’s claim meritless.

In the result, it is ordered as follows;

The application is hereby dismissed

Zimbabwe Haulage Truck Drivers Union, Applicant’s Legal Practitioners